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Sunday, June 27, 1999
By GUY PRIEL Journal Staff Writer MINNEAPOLIS -- A pair of Redwood Falls residents are claiming their constitutional right to free speech was violated by their home city and it's school district. The suit, filed recently in Federal District Court, alleges that representatives of the city of Redwood Falls and Redwood Area School District No. 2758 violated the First Amendment rights of Scott and Ken Hammerschmidt of Redwood Falls, both of Redwood Falls, during discussions about the construction of a proposed community center. The Hammerschmidts filed their initial lawsuit May 21, but rewrites in the complaint delayed the process longer than expected. Named in the lawsuit were five city council members, Mayor Sara Triplett, City Administrator Jeff Weldon; School Superintendent Rick Ellingworth; seven school board members and Redwood Falls resident Brad Limoges. Singled out separately as individuals were City Council Member Gary Revier and School Board Member Jim Buckley. The complaint, dated June 11, the suit was filed as a civil action and is designed to obtain judgment and a permanent injunction, and seeks action for damages and attorney's fees. The basic premise behind the lawsuit is a violation of First Amendment rights as they pertain to free speech, Hammerschmidt's attorney Matthew Zahn of Minneapolis said. "The premise is that individuals representing government entities interfered with his rights," he said. Government officials are elected for a specific reason and that is to help people out and not to make citizens angry, Scott Hammerschmidt said. "They overstepped their boundaries in regards to this issue and it is time to put a stop to this abuse of power," he said. "I want it made clear that we are not out to get money, we are out to get a revote on the community center." At the heart of the matter is the issue regarding construction of the community center and the voting process that lead up to the final result. "Basically the vote to build the community center was decided by a narrow margin of votes and it is the belief of Hammerschmidt that the City Council wouldn't listen to him when he tried to present a different view of costs for the project," Zahn said. "He did a little research into the proposal and realized that the numbers presented appeared inaccurate." According to the complaint, during the campaign to support the proposal, school board members and city council members distributed literature and pamphlets containing the inaccurate information to voters within the city limits. "When he had obtained information that the figures were wrong and that the vote would be based upon those figures, he wanted to get the word out so voters would get a clear picture of the whole story," Zahn said. "He started distributing flyers and was told he was breaking the law." The Hammerschmidts approached the City Council on March 1, 1999 during a public hearing to inform the members and the voters that the figures were wrong and were ignored by the council members, the complaint said. The vote was scheduled for March 9, so the Hammerschmidts distributed pamphlets identifying the information they had gathered in an attempt to help voters understand the entire picture. The pamphlets were left on the windshields of vehicles parked in church parking lots during regular worship services. Because of the short time period between the public hearing and the election, the Hammerschmidts believed this was their only avenue of getting the message out to the voters, the complaint states. As Ken Hammerschmidt was distributing the pamphlets, he was approached by Buckley and Revier, who threatened him with arrest and who later had Limoges remove the flyers that had already been distributed, the complaint states. The complaint further states that the Hammerschmidts had noticed several pamphlets and fliers placed on windshields during the past year in various parts of town. City Attorney Steve Thies stated that there is no law currently in place in Redwood Falls or in the State of Minnesota that prohibits the posting of handbills or flyers. "The city could enact a law, but it would need to be determined if it is a violation of free speech," he said. Conversely, under the Fair Campaign Political Practices Act the distribution of political materials within 14 days of an election without a disclaimer attached is prohibited, he said. "What makes it illegal in this situation is that there was no name attached regarding who paid for the advertisement and the fact that it was political in nature," Thies said. The complaint states that the Hammerschmidts believe that the outcome of the election would have been different if the flyers had been distributed, because there was only a 90 vote margin. "This is a time sensitive issue," Zahn said. "The overall goal of this is to revote the issue before ground is broken on the community center." He stated that the lawsuit was filed in an attempt to bring correct information to the voters, so they can understand what is at stake and help them get all the facts, he said. "This is the kind of case that needs to be litigated and his voice needs to be heard," Zahn said. "There is a great need for this in small towns. Of all the values we have as Americans, the right to political speech is supreme." Most First Amendment cases involve situations where people speak in parks and that brings up the question of whether the park is a public or a private space, but this case is different, he said. "The facts, as I have been advised of them, are different than those in the complaint," League of Minnesota Cities Attorney Pete Regnier of St. Paul said. "There is a procedure, under state law, for contesting elections. You can't come in three months after the fact and present this type of case. It is a misuse of the court system, in my opinion."
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